ML20155G858
| ML20155G858 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/04/1988 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#488-7222 ALAB-901, LBP-88-24, OL-3, OL-5, NUDOCS 8810180050 | |
| Download: ML20155G858 (24) | |
Text
(
ggp.>
'Nf]c?
'88 OCT -6 N1 :46 On v UNITED STATES OF AMERICA 00Cni. i m -- '!L' NUCLEAR REGULATORY COMMISSION N "'
Before the Atomic Safety and Licensing ADDeal Board In the Matter of )
)
LONG ISLAND LIG!! TING COMPANY . ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station )
Unit 1) )
LILCO'S ANSWER TO INTERVENORS' BRIEF ON BIFURCATED APPEAL Ilunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 October 4,1988 hk kOOcR50 ga3oo4 Q 0300032g N
~.
r TABLE OF CONTENTS Eage I. The Gleason Board's Findings on the 5ferits Slust Be Taken as Correct for the Purpose of this A ppeal . . . . . . . . . . . . , , , , . . . . . . . . . 2
!!. A Discretionary "Case Nianagement Tool" Cannot Be Used to Shield Unlawful Behavior or Pevise the Commission's Policies . . . . . . .............. 5 III. Any Licensing Board in the 50-322-OL Proceeding lias the Pow?r to Dismiss a Party f rom the Entire Proceeding . . . . . . . . . ................. 10 IV. The Case Law from the Federal Courts Supports the B o 3 r d 's A u t h o ri t y . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 V. That the Intervenors flere Are Sovereign Governments Does N o t Pro t ec t Them f ro m T heir $11sdeeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 VI. C o n c l us i o n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 F2
- c 0
TABLE OF AUTHORITIES Page i Court Decisions j
Aztec Steel Co. v. Florida Steel Corp.,691 P.Dj 480,482 (11th Cir.1982),
,cer[. denied 4 6 0 U.S. 10 4 0 ( 198 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,14 Branca by Branca v. SecuritV Ben. Life ins. Co., 773 F.2d 1158,1165 (11th Cir.1985) modif ;d. 789 F.2d 1511 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 international Union (UA W) v. NLRB 459 F.2d 1329,1336 (D.C. Cir.1972) . . . . . . . . . . . , 17 Link v. Wahash Railroad Company, 370 U.S. 626, 632 (1962) . . . . . . . . . . . . . . . . . . . . . . . 14 National Hockey League v. Metropolitan Hockey Club. Inc.,427 U .S . 6 3 9, 6 4 2 ( 19 7 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 State of Ohio v. Nuclear Regulatory Com'n. 814 F.2d 258,263-64 (6th Cir.1987) .................................................. 15 eisburg v. Webster, 749 F.2d 864, 872 (D.C. Cir.1984) ...................... 11,12 Wyle v. R.J. Reynolds industries. Inc., 709 F.2d 585,588-89, 591 (9th Cir.1983) ............................................. 12,13 NRC Decisions Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant Units 1 and 2). C LI-8 6-2 0, 2 4 N R C 518, 519 (19 8 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Duke Power Co. (Perkins Nuclear Station, Units 1,2, a nd 3 ), A L A B-5 91, 11 N R C 7 41 ( 19 3 0) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Gulf States Utilities Co. (River Bend Station, Units 1 and 2),
ALAB-444,6 NRC 760,768 (1977)
.................................. 15-16 Pacific Gas and Electric Co. (Diablo Car' yon Nuclear Power Plant, Units 1 and 2), A L A B-60 0,12 N R C 3, 8 (198 0) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Pacific Gas and Electric Co. (Stanislaus Nuclear Project U nit 1), LB P-7 7-45, 6 N R C 159,163 (19 7 7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
_Public Service Company of New flampshire,(Seabrook Station, Unit.1 1 & 2), ALAB-471,7 NRC 477,498 rev'd on other grounds, C LI-7 8- 14, 7 N R C 95 2 ( 19 7 8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , , , 17
~
Statutes and Regulations CLI-81-8,13 NRC 452, 454 (1981) ..................................... 3,4,10 j 10 C.F.R. 5 2.715(c) ................................................. 15, 16 10 C.F.R 5 2.718 ..................................................... 4
) '
Shoreham Orders and Decisions i
A L A B-7 8 8, 2 0 N R C 110 2,1178 (198 4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 9 ALAB-901, slip op (Sept. 20, 1988) ....................................... 5, 8 a
C Lt-8 6- 11, 23 N R C 5 7 7, 5 8 2 (19 8 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1
LBP-82-115,16 NRC 1923 (1982) ......................................... 6. 9 3
) LB P-8 3-2 2, 17 N R C 6 0 8 ( 19 8 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 4
LBP-83-57,18 NRC 443,579 (1983) ...................................... 6.17 i
< LBP-85-12,21 NRC 644,794,806-07,826-27 .......... ...................... 17 i
LD P-8 7-3 2, 2 6 N R C 4 7 9 ( 19 8 7 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 i
l LBP-88-2,27 NRC 85 (1988) ............................................. 8 i
! L B P-3 8-7, 2 7 N R C 2 8 9 (19 8 8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 LB P-8 8-13, 2 7 N R C 5 09, 5 4 7, 5 4 8 (198 8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.17 LBP-88-24,28 NRC (Sept. 23,1988) ................................ 1. 3, 16 l
l 4 8 Fed. R eg. 2 2.235 (M a y 17, 19 8 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 l
Change or Docket Number (July 2 4 , 19 8 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 i
Memorandum and Order (Sept. 2 9, 19 8 8 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. 5 Nottee of Reconstitution of Board: Clarification (unpublished order ) (Oct. 17, 1986) ................................... 7 Suffolk County and State of New York Motion to Rescind Reconsitution of Board by Chief Administrative Judge Cotter (Shoreham Nue! ear Power Stattun, Unit 1), LBP-86-37A 24 NRC 726 (1986) .. . ............... 7
~
LILCO, October 4,1988 I l
UNITED STATES OF AMERICA NUCLEAR REGULA TORY CO51511SSION l
Before the Atomic Safety and Licensing Appeal Board in the Statter of )
)
LONG ISLAND LIGHTING CO5tPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station. )
Unit 1) )
LILCO'S ANSWER TO INTERVENORS' BRIEF ON BIFURCATED APPEAL This is LILCO's response to the "Governments' Brief on Bifurcated Appeal from the September 23, 1988 Concluding Initial Decision in (LBPJ-88-24," dated September 27,1988 (hereinaf ter "IntervenoM' Brief"). In their brief Intervenors argue that the Gleason Board, in the -03 docket, lacked the authority to oust them from, among other things, participation in the exercise litigation, which is conducted under the -05 docket number. The Licensing Board's decision is Concluding Initial Decision on Emergency Planning LBP-58-2c,28 NRC (Sept. 23,1988) (hereinaf ter "CID").
Contrary to what Intervenors argue, the Gleason Board had not only the power but the duty to dismiss the Intervenors as it did. Indeed, to hold otherwise would do mischief to the NRC process LILCO's argument is in five parts:
- 1. Because of the bifurcation of the issues on appeal, the Gleason Board's find-ings on the merits must be presumed correct. Hence it must be taken as true for the purpose of this appeal that Intervenors' conduct was willful, prejudicial, and in bad faith and that the "only appropriate penalty"is dis-missal from the proceeding.
- 2. A discretionary "case management tool" - b, creation of sub-dockets -
cannot be used to shield unlawful or otherwise punishable behavior.
- 3. Any licensing board in the 50-322-OL proceeding has the power to dismiss a party from the proceeding. Whether such dismissalis appropriate is a f act-and-circumstance issue taking into account such things as the nature and pervasiveness of the behavior being punished and the relationship of the sub-proceeding in which the disciplinary action is taken to other sub proceedings affected by it.
n'*
.g. .
- 4. The case law from the federal courts supports the Licensing Board's author-ity to dismiss a party.
- 5. That Intervenors are governments does not protect them from the conse-quences of their misdeeds.
j
!. The Gleason Board's Findings on the Merits Must Be Taken as
- l. Correct for the Purpose of this Appeal The Intervenors have asked that the procedural issue of whether the Gleason Board had the power (Jurisdiction) to dismiss them be separated out and heard first.
- The Appeal Board granted this request without hearing the views of the NRC Staff or
! appilcant. Accordingly, no matter what the other parties may think about the bifurcation, both the Appeal Board and the parties must now be bound by the following groundrule: the Gleason Board's findings on the merits must be taken as true while the '
procedural issue is decided initially. A party may not have an issue split off for early i
decision and also take advantage of a presumption that he will succeed in having other .
f decisions reversed in the future. (If authority for this self-evident proposition is neces-
\
sary, it may be found by analogy to motions for summary disposition, for which the record must be viewed in the light most favorable to the party opposing the motion.
j Seg, g&, Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit 1), LBP-77-45, 6 NRC 159,163 (1977).)
[
- Also, federal case law indicates that a reviewing court should not substitute its l i
judgment for the judgment of the fact finder in imposing sanctions. In National Hockey l League v. Metropolitan Hockey Club. Inc., 427 U.S. 639,642 (1976)(per curiam), the Su-
! preme Court held that, under the circumstances, the district judge had not abused his t I
discretion in finding bad faith on the part of the plaintiff hockey club for falling to an- l t 1 l swer interrogatories on time. The Court explained as follows: :
I l The question, of course, is not whether this Court, or
- whether the Court of Appeals, would as an original matter ,
have dismissed the action: it is whether the District Court i
abused its discretion in so doing.
______n-
3
. i A fortiori, then, the ApperJ Board should not substitute its judgment on the merits for the Licensing Bcard's without even reviewing the record below or allowing the parties to brief the merits.
Since the bifurcation of the issues requires that the Iicensing Board's findings or.
the merits be taken as correct, the following in particular must be deemed true:
- 1. The record reveals "a sustained and willful strategy of disobedience and dis-respect for the Commission's adjudicatory processes." CID, slip op, at 129,
- 2. Intervenors' actions "were willful, taken in bad faith, and were prejudical to LILCO and the integrity of the Commission's adjudicatory process." Ld.
at 130.
- 3. The sanction of dismissal as parties to the proceeding "is the only appropri-ate penalty." M.
- 4. The misbehavior for which this sanction was levied was found to have per-vaded all the eme gency planning proceedings: not just the recent portion of the offsite EP (OL-3) proceeding but also in the earlier onsite proceeding and during the 1986 exercise (OL-5) proceeding. M. at 108-12.
Given these findings, which must be accepted as true for present purposes, the issue is whether the Licensing Board lacked the authority to impose "the only appropri-ate penalty"lef t to the Board under the Commission's Statement of Policy. CLI-81-8,13 NRC 452, 454 (1981). The issue is not whether the sanction it levied was appropriate under the facts and circumstances, but whether it lacked the power to levy the sanc-tion no matter how justified it may have been.
LILCO submits, as it has before, that Intervenors' "jurisdictional" argument goes to the very authority of a !! censing board to make use of the entire spectrum of sanc-tions expressly made available by the Commission. The Appeal Boarc evidently dis-agrees; it has said that LILCO misunderstands the "narrow jurisdictional issue" here and n.
r 4
that the "instant appeal does not raise issues concerning licensing boards' authority to impose sanctions against parties generally." Memorandum and Order at 6 (Sept. 29, 1988). LILCO urges the Appeal Board to reconsider that opinion.I The Commission's Statement of Policy gives licensing boards a "spectrum" of sanctions up to and including 1 dismissal of parties from the proceeding. 13 NRC 452,454; see alto 10 C.F.R. S 2.718.
If the Appeal Board rules in Intervenors' f avor on this appeal, however, the ultimate sanction does not exist in a multi-board proceeding. The result will be that, whenever the Chairman of the Licensing Board Panel appoints a second board to hear part of a proceeding, he will be creating a vacuum: no board in a multi-board proceeding will re-tain the ultimate power to dismiss a party -- no matter how serious the party's miscon-duct. Thus the discretionary "case inanagement tool" of assigning docket numbers and judges will have been used to curtail the Commission's Statement of Policy and to npen each portion of a proceeding to the kind of tactics that, as the OL-3 Board found, Inter- ,
venors have engaged in for years. With all due respect, the Appeal Board and the Inter-venors are wrong that the authority to impose sanctions is not at issue here.
Indeed, what Intervenors seek by their bifurcated appeal is in effect a decision on the merits of the sanctions issue, including the appropriateness of the sanction ap-plied. If the Intervenors prevail on what they apparently have persuaded the Appeal Board is a "narrow jurisdictional issue," then the Licensing Board's decision to dismiss 1/ Indeed, this matter is before the Appeal Board now despite the Appeal Board's admonition in Perkins that the Licensing Board has not only the right but the duty to determine its jurisdiction in the first instance. Duke Power Co. (Perkins Nuclear Sta-tion, Units 1,2, and 3), ALAB-591,11 NRC 741 (1980). In that case, a petitioner filed a petition to intervene in the Perkins construction permit proceeding with the Licensing Board, but the Staff filed a response with the Appeal Board because the Licensing Board had already rendered a partial initial decision. The Appeal Board declined tu address the jurisdictional question and referred the Staff's response to the Licensing Board for its consideration. The situation here f alls squarely within that precedentt the NRC Staff filed its scheduling request with the OL-3 board, and the Intervenors filed their response with the Appeal Board. Under Perkins the Appeal Board should not decide the jurisdictional issue in the first instance, a
the parties, rather than merely dismiss the contentions, would be reversed. The preju-dice to LILCO from such a decision would be severe, particularly since the bifurcation decision was made ex parte, the briefing time on the procedural issue was made so short. and briefing on the merits has not been done at all.
H. A Discretionary "Case Management Tool" Cannot De Used to Shield Unlawful lichavior or Revise the Commission's Policies As the Appeal Board recognized in ALAB-901, the source of the problem is "the disposition of different issues at different times in the same operating lleense proceed-ing by multiole licensing boards, through the issuance of several ' partial initial deci-sions' (ra" <an one ' initial decision')." A LAB-901, slip op, at 4 (Sept. 20,1988). The Appeal ff- 'ed that the Rules of Practice do not explicitly authorize or address this proble .a th these practices "have t.ecome essential to effective case manage-men t." [4t see also Appeal Board Memorandum and Order at 5 n.5 (Sept. 29.1938)
("case management tool" of using multin!e licensing boards).
The practice of dividing the 50-322-OL proceeding among a variety of docket subnumbers and licensing board judges is, as the Appeal Board has said, a "case manage-ment tool." Dockets are renumbered and Boards reconstituted by the Chairman of the Atomic Safety and Licensing Board Panel, without prior notice to the parties, as a rou-tine ministerial matter. Indeed, in this case Intervenors have complained bitterly about such practico. But as the Appeal Board has said, "absent Commission action, the Li-censing Board Panel Chairman is free to establish and reconstitute licensing boards with whichever individual Panet Members he feels are appr( priate, subject to review only for an abuse of discretion." ALAB-901, slip op at 7. If this ministerial reconstituting of Boards affected the "jurisdiction" and basic enforcement powers of the boards involved, then it would certainly come as a surprise to litigants and at worst might deny them due process, o-
6-There is one "proceeding" here, on LILCO's application for an operating license.
All the operating license issues are under Docket Number 50-322-OL, which has includ-ed the "health and safety" issues, the "Phase !" (onsite) emergency planning issues, the "Phase II" (offsite) emergency planning issues, the issues remanded by the Appeal Board and the Commission, and the issues over the February 1986 and now the June 1988 cmergency planning exercises. Included at various times were issues involving the so-curity plan and the emergency diesel generators.
For most of this proceeding the issues have been decided under the undivided 50-322-OL docket number. For example, 50-322-OL was the docket number on the Brenner Board's (Judges Brenner, Carpenter, and Storris) decision that the Intervenors were in default of a Board order (LDP-82-115,16 NRC 1923 (1982)), the same Board's decision that the proceeding should go forward notwithstanding the County's opposition to all emergency plans (LDP-83-22, 17 NRC 608 (1983)), and the Board's (Judges Brenner, Ferguson, and 51 orris) decision on the health and safety issues (LBP-83-57,18 NRC 445 (1983)).
In Stay 1983 Me Chairman of the Licensing Board Panel established a separate licensing board, designated as sub-docket OL-3 and authorized to preside "over the pro-ceeding on all emergency planning issues." 48 Fed. Reg. 22,235 (Stay 17,1983). On February 13, 1986, LILCO conducted the first FESIA graded exercise of the Shoreham of fsite emergency response plan. One month later, responding to a pleading by Interve-nors and in the interest of expediting any exercise litigation on the 1986 Shoreham ex-croise, LILCO filed a motion before the Comm'rsion requesting the establishment of a licensing board and expedited procedures fc? litigation of that exercise. See Long Is-land Lighting Company's $10 tion for EstaF.shment of Licensing Board and institution of Expedited Procedures for Litigatio sr Shoreham Emergency Planning Exercise Issues, and Response to Intervenor ' 'aarch 7,1986 "Stotion Concerning Proceadings Relating n.
to the Sh '
- ham Exercise"(Starch 13, 1936). LILCO asked the CommLvion to appoint a board con osed of members "who have participated in the earlier Shoreham emergency planning proceedings and thus have knowledge of the LILCO Plan and the mammoth record in the case." !_d. at 11.
On June 6,1986, the Commission issued an order to initiate a hearing on the re-sults of the 1986 exercise and directed the Chairman of the Atomic Safety and Licens-ing Board Panel to "reappoint the members of the earlier Board if they are available."
Long Island Lighting Co a (Shoreham Nuclear Power Station, Unit 1), CLI-86-11,23 NRC 577, 582 (1986). On June 10, the Licensing Board Panel Chairman, Chief Administrative Judge B. Paul Cotter, Jr., did just that, appointing the members of the existing OL-3 docket Board - Administrative Judges Stargulies, Kline, and Shon - to preside over liti-gation on the 1986 exercise. See Establishment of Atomic Safety and Licensing Board (unpublished order) (June 10, 1986). This Commission direction to appoint the members of the earlier board, if available, Indicated the Commission's awareness of the obvious and important interrelationship of emergency planning and exercise issues. The OL-5 designation for exercisc-related papers was made several weeks late by Judge Cotter "for more effective chcket management." _C_hange of Docket Number (July 24, 1986).
On October 7,1986, Judge Cotter sua sponte reconstituted the OL-5 Board by replacing Board Chairman Stargulies with Judge John H. Frye, !!!, and Judge K!!ne with Judge Oscar H. Paris. (Judge Shon remained a member of both the OL-3 and OL-5 Boards.) Judge Cotter cited schedule conflicts as the basis for the Board reconstitution.2I On October 17,1986 Judge Cotter issued an order clarifying the scope 2/ On October 14,1986, counsel for Intervenors wrote to the Licensing Board Panel Chairman demanding that the reconstitution order be rescinded. S_ce Letter from Herbert H. Brown to B. Paul Cotter Jr., (Oct. 14. 1986). Responding to a subsequent motion Itied by Intervenors, the Panel Chairman declined to rescind the reconstitution order. See Suffolk County and State of New York Motion to Rescind Reconstitution of Board by Chief Administrative Judge Cotter (Shoreham Nuclear Power Station, Unit 1),
LBP-86-37A,24 NRC 726 (1986).
~
l 1
of the October 7 Order. S_g_e Notice of Reconstitution of Board: Clarification (unpublished order) (Oct. 17, 1986).
The OL-5 Board issued decisions on the 1986 exercise on' December 7,1987, and l
February 1,1988. S_e_g LDP-87-32, 26 NRC 479 (1987); LDP-88-2, 27 NRC 85 (1988), t LILCO sought appeal from these decisions on December 17, 1987, and February 12.
1988, respectively.
On March 9,1988, af ter soliciting the views of the parties,U the OL-5 Board is-sued a Memorandum and Order in which it declined i s retain jurisdiction over Shoreham exercise-related matters. See LBP-88-7, 27 NRC 289 (1988). The Board's decision, which was never appealed from, had been opposed by LILCO and Intervenors, who both asked the Frye Board to retain jurisdiction over any remedial aspects of the 1986 exer-cise.O The Appeal Board has now held, sua sponte, that the Frye Board was incorrect almost seven months ago in LBP-88-7. ALAB-901,28 NRC , slip op. at 9 n.6 (Sept.
20, 1988).
This complicated case history -- created by Intervenors' own efforts to litigate every conceivable issue -- has provided them with an opportunity. What the Interve-nors have tried to do -- and will succeed in delng if the Appeal Board upholcis their appeal -- is to convert the discretionary "case management ' dol" of board assignment l 3/ See LILCO's View on Continuing Board Jurisdiction (Feb. 17, 1988); NRC Staff Response to Board's Request for Views of Parties on Whether the Board Should Retain Jurisdiction Over LILCO Corrective Actions (Feb. 19, 1988): Governments' Views on Whether the Licensing Board Should Retain Jurisdiction of the Exercise Litigation (Feb.
23, 1988).
F LILCO's view was explicitly conditional on the notion that the 1986 exercise could still serve as a basis for licensing. The Appeal Board has twice expressed its view, however, that the 1986 exercise cannot serve as the basis for issuance of a 11-cense and that the appeals from the OL-5 Board's Order are technically moot and re-quire the rendering of advisory opinions, which the Appeal Board was willing to give because of their expected precedential value. Accordingly, the only continuing vitality to the OL-5 docket has been as a vestigial avenue for technically moot appeals, rr
r ;
l I
and creation of sub-dockets into a shield against the consequences of their own unlaw- l ful behavior. The Intervenors propose to divide the proceeding into watertight "jurls- I dictional" compartments. In each such compartment they will push the rules as far as they can be pushed and even beyond, and,if occasionally they find themselves (or mere-
\
ly their contensions) dismissed for improper behavior, then they can merely move on to i the next compartment and start again -- with the apparent approval of the Appeal Board in this particular case. As the Appeal Board knows, the Intervenors have used !
this tactic before. See LBP-82-115,16 NRC 1923 (1982).
Thus Judge Shon's observation that Intervenors' recalcitrance "did not extend to all phases of the case," CID, dissenting opinion, slip op at 10, which he felt mi!!tated in ,
, Intervenors' favor, actually militates against them. It is part of tha very insidiousness i
of their tactics that, as the majority put it, the "strategy of non-cooperation and ob- I struction was deeply entwined with legitimate practice." CID, slip op at 129. Of I
course it was; that was precisely the point. The Intervenors' strategy was to obey [
enough of the Rules of Practice to stay in the proceeding while violating the Rules of l i
Practice and Licensing Board orders whenever it was to their advantage. The Licensing Board majority fully understood this.
{
In two instances, first in the "Phase I" proceeding and now in the matter at hand, i
Intervenors pushed the Rules too f ar and were in effect excluded from the proceeding. !
But those sanctions are of little effect if the intervenors can simply move on to a new phase of the proceeding and begin their tactics anew. The Brenner Board concluded that it was obligated to impose sanctions against Suf 6.x County in order to prevent fu-
{
ture violations of the Rules:
I To allow intervenors to decline to follow our order solely because they disagree with it, would be a particularly egregious abdication of our duty under 10 CFR 52.718 to regu-late the course of this proceeding. Not only would permitting such actions be contrary to Commission precedent, but it would also likely be repeated were sanctions not imposed for this breach so as to induce future compliance with Board orders.
n-
m l
l LBP-82-115.16 NRC 1923,1931 (1982). The Appeal Board affirmed the Brenner Board's i def ault ruling as "unassailable." ALAB-788, 20 NRC 1102,1178 (1984). What has re-F cently been made clear is that the Brenner Board's sanctions were not sufficient to pre- !
vent further deliberate violations of the Rules.
III. Any Licensing Board in the 50-322-OL Proceeding lias the Power to f, Dismiss a Party from the Entire Proceed _ing l
The Commission's "Statement of Policy on Conduct of Licensing Proceedings,"
CLI-81-8,13 NRC 452 (1981), provides that a "spectrum of sanctions from minor to se-
{
vere is available to the boards to assist in the management of proceedings." W. at 454. I l
"For example, the boards could . . . In severe cases, dismiss the party from the proceed-ing." M. As noted above, the Intervenors' view of jurisdiction would remove the dis-missal sanction, which in this case, based on the record, is the "only appropriate penal- (
ty," from this and other multi-board cases.
It follows from what has been said that any board in this docket is empowered,in extreme cases such as the one presented here, to dismiss a party from the entire I
(
50-322-OL proceeding. The Brenner Board could have done Itt the Frye Board could i have done itt and the Gleason Board could have done it (and did). Intervenors' remedy is to appeal their dismissal on the merits.
I IV. The Case Law from the Federal l Courts Supports the Board's Authority ,
i The issue presently before the Appeal Board is one that has not arisen before in !
this Commission. However, contrary to Judge Shon's views.N federal case law makes l
5/ In his partial dissent from the Licensing Board's decision, Judge Shon cites a 1971 i treatise on federal practice for the suggestion that dismissal of Intervenors from the i entire case might vlotate constitutional limitations. Dissent, slip op at 5. He admits, however, that he was unable to find "any clear precedent" on the issue. M. As de- {
scribed above, clear precedent exists to show not only that complete dismissal of a :
party from an entire proceeding is constitutional but also that such dismissai is some- i times necessary to preserve the integrity of the judicial process. ;
i Q *, _ . _ _ _ _ - - - _- ---
clear that a court's authority to impose sanctions, including dismissal from the entire case, cannot be limited by bifurcated proceedings or other "case management tools" that are typteally employed in complex federal litigation.
In Branca by Branca v. Security Ben. Life Ins. Co., 773 F.2d 1158 (11th Cir.
1985), modified, 789 F.2d 1511 (1986), the appellate court rejected the defendant's "spe-clous jurisdictional argument" concerning enforcement of sanctions from a discovery dispute that had arisen in a separate court. 773 F.2d at 1165. Plaintiff sued in a feder-al court in Florida to collect the proceeds from two life insurance contracts and sought discovery against defendant's employee in Kansas. When a discovery dispute arose, plaintif f obtained an order to compel f rom the federal district court in Kansas. The de-tendant refused to obey the order and appealed to the Court of Appeals for the Tenth Circuit. When the plaintiff moved in the Florida district court for sanctions, the defen-dant argued that the district court in Florida had no authority to grant sanctions for a discovery dispute occurring in Kansas. The Court of Appeals for the lith Circuit dis-agreed and remanded the issue to the Florida district court for findings and conclusions on whether the defendant had abused discovery procedures.
In Weisburg v. Webster, 749 F.2d 864 (D.C. Cir.1984), the court upheld the dis-missal of the plaintif f's entire case, even though the discovery dispute affected only the first part of a bifurcated proceeding. Af ter several years of Freedom of Information Act requests and appeals, during which time the FBI made available more than 200,000 l
pages of documents, the plaintiff filed suit challenging the government's reponses.
The district court divided the case into two parts, one on the adequacy of the FBI's search and another on the validity of l's asserted exemptions. With regard to the ade-(
quacy of its search, the FBI sought discovery f rom the plaintif f. Atter months of delay '
and refusals to respond, the district court granted the government's motion to dismiss the entire case. On appeal, the plaintiff argued that it was error for the trial court to
~ _ _ _ . .-- . . - -
. l dismiss him from the entire case when the sanctioned conduct arose only in the first proceeditsg. The Court of Appeals disagreed:
If dismissal is to perform the deterrent function envi-stoned in National Hockey Leastue, dismissal of the entire case will of ten be necessary, even when the discovery dispute is focused on a single claim. If the most that can be put at risk ,
by recalcitrant behavior is dismissal of the disputed claim, the '
recalcitrant party will of ten have an incentive to test the court, lits obstreperousness may result in some compromise on the disputed claim, which works to his benefit. If he is unlucky and suffers a limited dismissal, he only loses what he would have lost anyway-the particular point at issue. Limit-ed dismissal may present him with nothing to lose and some-thing to gain.
749 F.2d at 87?
In Wyle v. R.J. Reynolds Industries. Int,709 F.2d 585 (9th Cir.1983), the plain-tiff filed an antitrust complaint alleging, among other thlngs, that the defendant.had paid illegal rebates from 1971 through 1975. The defendant admitted that it had paid possibly illegal rebates but alleged as an affirmative defense and counterclaim that the plaintiff had paid similar rebates and had falsely denied rebating. The plaintiff denied the claim, counterclaimed, and demanded a jury trial. M. at 588.
In addition to denying the defendant's allegations of illegal rebating, plaintiff gave sworn testimony and filed sworn answers to interrogatories denying that it had paid illegal rebates. The defendant moved for sanctions, including dismissal of the complaint, on the grounds that plaintiff had falsely claimed that it had not engaged in rebating and that it had f ailed to comply with court orders directing the production of documents concerning rebating. M. at 588-89.
During a later hearing on a different issue, counsel for the plaintiff admitted that one of plaintiff's agents had engaged in illegal rebating. At about the same time, following plaintiff's bankruptcy and the appointment of a new trustee, the plaintiff filed amended answers to defendant's counterclaim admitting that it had engaged in rebating. The district court held evidentiary hearings on the defendant's motion for n-
sanctions and concluded that the plaintiff's entire complaint and counterclaim should be dismissed.
On appeal, the plaintiff argued that the sanction of dismissal should be lif ted (1) because it was unrelated to the issue of rebating and (2) because it was disproportionate to the violation, especially in light of plaintiff's amended answers. L4. at 591. The Court of Appeals rejected both arguments. First, the court said the issue of rebating was clearly relevant to the question of whether, and to what extent, the defendant should be held liable for plaintiff's injuries. Second, the Court found that the sanction was not inappropriate:
4 Unless we uphold the dismissal, PFEL (the plaintiff] will I
pro!!! from its own failure to provide discovery. The district court expressly found that monetary sanctions would be insuf-fic!ent because PFEL withheld 'the essential evidence needed to establish the true extent of rebating.' Additionally, the court weighed the relevant factors, and determined that the j deliberate deception and the irreparable loss of material evi-j dence justified the sanction of dismissal. Although this court i might have sett!cd on a different sanction had we considered
{ the question originally, the district court's decision clearly
! falls within the acceptable range.
Id. (citations omitted).
i
- Dismissal sanctions may be imposed to cover not only all issues in a proceeding but also all parties. In A ztec Steel Co. v. Florida Steel Corpa, 691 F.2d 480 (11th Cir.
j 1982), cert denied 460 U.S.1010 (1983), plaintilis sued Florida Steel Co., LaClede Steel i
Co., and Bethlehem Steel Co. alleging entitrust violations. Bethlehem and LaClede l
j served interrogatories on the plaintiffs, but plaintiffs f ailed to respond adequately. The
)
I district court dismissed plaintiffs' claims against all three defendants. Plaintiffs ap-i pealed the dismissal of their claim against Florida Steel, which had not served interrog-l a
atories. The Court of Appeals upheld the dismissal, noting that appellants' argument disregarded the"institutional values" that the court was empowered to protect:
I I
n.-
o (S]anctions are imposed not only to prevent unf air prejudice to the litigants but also to insure the integrity of the discov-ery process. (Plaintiffs'] contumacious conduct justified the district court's dismissal of the entire action, j Id. at 182.
3 These cases did not arise in NRC proceedings and may be distinguishable on one J
ground or another from the Shoreham case. But at a minimum they illustrate an impor-tant principle that applies fully to NRC practice: an adjudicatory body's authority to protect the integrity of its processes cannot and should not be limited by procedural de-vices, not even when such devices are claimed to be "jurisdictional" by the sanctioned j party.0/ They !!!ustrate also that appellate courts defer to the discretion of trial courts in imposing sanctions - a principle that Intervenors seek to weaken at the NRC by lim-l Iting the "jurisdiction" of licensing boards.
1
! V. That the Intervenors flere Are Sovereign j Governments Dom Not Protect Them from their_ Misdeeds Judge Shon in his partial dissent argues that governments should not be dismissed from a proceeding, apparently not ever and in any event not in this proceeding, simply because they iLre governments. Dissent, slip op, at O But his reasoning, LILCO submits, is unpersuasive.
$/ . Federal caselaw also establishes that the atsence of notice as to the possibility
! of dismissal does not necessarily render such a dismissal void. See Link v. Wabash Ballroad Company,370 U.S. 626,632 (1962)(Warren, Black, and Douglas dissenting). In
] the Shoreham case Intervenors had ample notice of the possibility of dismissal from the entire proceeding. The Board first noted that it was considering the possibility of dis-missal in a teleconference of June 24, 1938. Transcript at 20,923 (Judge Gleason). In
- its brief filed on July 26,1983, LILCO urged the Board "to dismiss Intervenors from this i
entire proceeding for long-standing and continuous violations of basic good-faith dis-covery norms." LlLCO's Supplement to its June 15 Brief on Discovery Sanctions in Light of Subsequent Developments at 2 (July 26.1988). In response, Intervenors sur-veyed the caselaw and concluded that "federal courts reserve the ultimate sanction of dismissing a party for only those cases in which a party shows bad faith in falling to comply with discovery." Government's Reply to July 26 Supplements Filed by LILCO and the NRC Staff Seeking imposition of Sanctions at 89 ( August 1,1938). Without question, then, Intervenors had sufficient notice of the possibility of dismissal from the entire case.
m
O First, a violation of the rules is a violation of the rules, no matter who commits it. The harm to the NRC's process and authority is at least as severe when a govern-ment violates the rules as when a private party does.
Second, one would expect a soverelgn government to have more, not less, re-spe.:: for the legal process. Should not the NRC hold such governments to a higher, not a lower, standard of behavior? In this case the State has several operating nuclear plants; the County has Washington, D.C. counsel with long experience in this case and other NRC cases. Should not these governments be held to as high a standard as a private party intervenor with no legal counsel and no technical expertise?
Judge Shon cites a regulation,10 C.F.R. S 2.715(c), that gives state and local governrr.ents certain "speelal treatment." He reasons that governments should also be i
given special treatment when sanctions are imposed against them. But the special ,
treatment af terded states and other governments is defined by 5 2.715, not just illus-trated by it. Indeed, in the River Bend case cited by Judge Shon, the Appeal Board noted that a government let in as an "Interested state must observe the procedaral re-quirements applicable to other participants. Gulf States Utilities Co. (River Bond Sta- l tion, Units 1 and 2), A LAB-444, 6 NRC 760, 768 (1977), cited in Judge Shon's dissent, slip op, at 9.0 There appears to be no authority for the proposition that, contrary to
_7/ While the Commission f avors the involvement of interested States and local gov-ernments, this right of participation is not unconditional. See Cleveland Electric
[Ilu_m.inatine Co. (Perry Nuclear Power Plant Units 1 and 2), CLI-86-20, 24 NRC 518, i
519 (1986) af f'd syk nom. Ohio v. Nuclear Regulatory Com'n, 814 F.2d 258, 263-61 (6th
' Cir.1987) (a state intervening late must take the proceeding as it finds it). An inter-ested State seeking to participate in a proceeding under 10 CFR 2.715(c) must, once ad-mitted, observe the procedural requirements applicable to other participants. See Gull '
States Utilities Co, (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 768 (1977). For example, an interested State may not complain of rulings made or proce-dural arrangements settled prior to its participation. See Pacific Gas and Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2), . LAB-600,12 NRC 3,8 (1980),
i The "interested State" provision in 10 C.F.R. S 2.715(c) permits an interested (footnote continued) l
~
River Bond, the special treatment afforded by 5 2.715(c) creates other, unstated privi-leges for states and counties.
Judge Shon also cites governments' "expertise" in emergency planning and the Commission's statements approving the participation of state and local governments in emergency planning. Dissent, slip op, at 9. Those considerations have force, however, only where the governments are using their expertise in a good-faith effort to help the NRC find the truth. Where, as here, the Intervenors are engaged in a results-oriented effort to prove (or even render) emergency planning inadequate no matter what the f acts, their "expertise"in and of itself is framaterial. The Board has found that with re-spect to the realism issues the Intervenors obstructed its search for facts by with-holding from it witnesses who have "expertise." And it found, in the cases of hospital ETE's, school bus driver role conflict, and reception centers, that the intervenors have pursued litigation more with an eye to dragging out the proceeding than to getting at the truth. See CID, LDP-88-24, slip op, at 82 (finding that Intervenors' assertions of un-certainty in hospital ETE's have little merit because based on flawed and misleading ev-idence), 85 (questioning Intervenors' good f aith in pursuing litigation on hospital ETE's af ter it became evident there was no f actual cause for controversy within the defined scope of the proceeding), 61 (criticizing as ";udicrous" Intervenors' claim that school children would be denied access to Nassau County); LBP-88-13,27 NRC 509,547 (1988)
(State review of LILCO's traffic analysis in reception centers proceeding was not dtscriminating and brought into litigation every arguable fault, whether significant or (footncte continued)
State or local government to participate in a proceeding without taking a position on the issues. Here, the Intervenors have certainly taken a position on the issues and have been admitted, and have participated, as parties. Moreover, their participation has re-sulted in their dismissal from the proceeding for serious misconduct. In these circum-stances, they should not be permitted to participate further notwithstanding the special status available to State and local governments pursuant to 10 C.F.R. 5 2.715(c).
~
l not), 548 (Intervenors' experts on traffic lost a measure of credibility). Earlier boards had found the same lack of candor and good faith, See LBP-83-57,18 NRC 445, 579 (19d3) (Board's task on QA issues compounded by Suffolk County's misrepresentation of the complete record); LBP-85-12, 21 NRC 644, 794 (State and County witnesses at-tempted to "circumvent" the quantitative problem of the effect of human behavior on the evacuation plan),806-07 (County witness was of little assistance in resolving evacu-ation time estimate issues),826-27 (State witness fell short of Board's expectations on issue of number of available buses). Sanctions have been imposed here precisely be-cause Intervenors repeatedly refused to reveal evidence, within their "expertise," that (it must be presumedN) would have weighed against their litigation position. Under these circumstances appeals to their "expertise" have no force whatsoever, At bottom Judge Shon's argument appears to be that the NRC and FEMA cannot correctly decide emergency planning issues without the help of intervenors, even inter-venors who proceed in bad f aith and flout the Commission's Rules of Practice. LILCO does not understand that to be a correct view either of the facts or of the theory of SRC regulation.
3/ As a general proposition NRC case law recognizes "that when a party has rele-vant evidence within his control that he fails to produce, that failure gives rise to an inference that the evidence is unf avorable to him." P_ublic Servic_e Company of New Hampshire (Seabrook Station Units 1 & 2), ALAB-471, 7 NRC 477, 493, rev'd on other grounds, CLI-78-14, 7 N8C 952 (1978), quotine International Union (U AW) v. NLRB, 459 F.2d 1329,1356 (D.C. Cir.1972),
n
(_
VI. Conclusion The Gleason Board had the authority to dismiss parties from the entire 50-322-OL proceeding, as does any licensing board in the docket in extreme cases. The Board's action should be af firmed.
Respectf ully submitted,
=2 onald Piirw 1_ ,
James N. Chr (man '
K. Dennis Sisk Charles L. Ingebretson Counsel for Long Island Lighting Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 D A TE D: October 4,1938 r,
LILCO, October 4,1988 CERTIFICATE OF SERVICE
..at r
..c in the 51atter of LONG ISLAND LIGHTING CO5! PAN #q (Shoreham Nuclear Power Station, Unit'1)OCT -6 All :46 Docket No. 50-322-OL-3
$UCN! y : _ [ > N
! hereby certify that copies of LILCO'S ANSWER TO INTERVENORS' BRIEF ON BIFURCATED APPEAL were served this date upon the following by telcopier as indi-cated by one asterisk. Federal Express as indicated by two asterisks, or by first-class mail, postage prepaid.
Christine N. Kohl, Chairman
- Str. Frederick J. Shon Atomic Safety and Licensing A tomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Fif th Floor East-West Towers East-West Towers 4350 East-West Illghway 4350 East-West Highway Bethesda,51D 20814 Bethesda,51D 20814 James P. Gleason, Chairman Alan S. Rosenthal, Esq.
- Atomic Safety and Licensing Board A tomic Safety and Licensing 513 Gilmoure Drive Appeal Board Silver Spring, afaryland 20901 U.S. Nuclear Regulatory Commission Fif th Floor Dr. Jerry R. Kline East-West Towers Atomic Safety and Licensing 4350 East-West Highway Board Bethesda, StD 20814 U.S. Nuclear Regulatory Commission East-West Towers Str. Howard A. Will:er
- 4350 East-West liighway Atomic Safety and Licensing Bethesda, StD 20814 Appeal Board U.S. Nuclear Regulatory Commission Secretary of the Commission Fif th Floor Attention Docketing and Service East-West Towers Section 4350 East-West Highway U.S. Nuclear Regulatory Commission Bethesda,51D 20814 1717 11 Street, N.W.
Washington, D.C. 20555 John II. Frye, !!!, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East-West Towers Washington, D.C. 20555 4350 East-West Highway Bethesda,51D 20814 Adjudicatory File Atomic Safety and Licensing Dr. Oscar H. Paris Board Panel Docket Atomic Safety and Licensing U.S. Nuc! car Regulatory Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission East-West Towers Edwin J. Reis. Esq.
- 4350 East-West liighway U.S. Nuclear Regulatory Commission Bethesda, StD 20814 One White Flint North 11555 Rockville Pike Rockville,51D 20852 m
I
. 3 Herbert H. Brown, Esq.
- Stephen B. Latham, Esq. **
Lawrence Coe Lanpher, Esq.
Twomey, Latham & Shea !
Karla J. Letsche, Esq. 33 West Second Street Kirkpatrick & Lockhart P.O. Box 298 t
South Lobby - 9th Floor Riverhead, New York 11901 1800 M Street, N.W. l
~
Washington, D.C. 20036-5891 Str. Philip S!cintire !
Federal Emergency Management i Fabian G. Palomino Esq.
- Agency I Richard J. Zahnleuter, Esq. 26 Federal Plaza Specla! Counsel to the Governor New York, New York 10278 ;
Executive Chamber Room 229 Jonathan D. Feinberg, Esq. I State Capito! New York State Department of Albany, New York 12224 l Public Service Staff Counsel i Three Rockefeller Plaza l Alfred L. Nardellt, Esq. Albany, New York 12223 i Assistant Attorney General '
120 Broadway Ms. Nor.1 Bredes Room 3-118 Executive Coordinator l New York, New York 10271 Shoreham Opponents' Coalition !
195 East Main Street i George W. Watson. Esq.
- Smithtown, New York 11787 William R. Cumming, Esq. [
Federal Emergency Management Evan A. Davis Esq. .
Agency Counsel to the Governor i 500 C Street S.W., Room 840 Executive Chamber !
Washington, D.C. 20472 State Capitol :
Albany, New York 12224 :
Mr. Jay Dunkleberger New York State Energy Office l E. Thomas Boyle, Esq. f Agency Building 2 Suffolk County Attorney l Empire State Plaza Building 158 North County Complex l Albany, New York 12223 Veterans Memorial Highway [
Hauppauge, New York 11788
[
Dr. Monroe Schneider l North Shore Committee I P.O. Box 231 ['
Wading River, NY 11792 t
l
? A Y A W .* d,4 6 0 {. }-/-f-l {
%MMJ)WM '
James N. Christman Hunton & Williams / /
C '
707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 4,1988 m